Blake Sims handles voir dire for Marston, pacing before the jury box in a rather annoying fashion while he questions the potential jurors about their backgrounds and what they’ve read in the newspapers. Most admit that they’ve read about the case (how could they have avoided it?) but claim they have formed no opinion as to the guilt or innocence of either party. Most of them are lying, of course. That’s the way these things go. You can’t keep human nature out of a human process.

As the voir dire progresses, I notice that Sims is avoiding direct questions about racial views. At first I thought this was circumspection; with cameras in the courtroom, he would want to avoid any hint of racial bias. But as he exercises his peremptory challenges, his strategy becomes clear. He has seen that he has a shot at a predominantly white jury, and he means to get it, even if it means breaking the law.

After Sims rejects the fourth black juror, I stand and make my first objection of the day, citing Batson v. Kentucky and the line of subsequent cases extending the prohibition against excluding potential jurors on the basis of race to civil cases. Judge Franklin immediately sustains my objection, and Livy finally turns in my direction. Her eyes hold nothing for me. They are merely the eyes of opposing counsel, acknowledging my small victory in a war that will see many more skirmishes before the issue is decided.

After this point the voir dire passes more quickly than any in my career. I judiciously exercise my peremptories, culling on the basis of instinct. When my mental radar picks up echoes of blue-collar or rural backgrounds combined with religious fundamentalism, I pull the trigger. I challenge some whites for cause after tripping them up on questions about prejudice, but most racists quickly figure out how to conceal their true beliefs. Nearly every potential juror admits knowing Leo Marston to some degree, so many that I cannot realistically disqualify them on this basis. By eleven-forty-five a.m., we have empaneled twelve jurors (seven white, five black) and two alternates. Judge Franklin recesses for lunch and instructs the lawyers to be ready for opening statements at one.